A federal appeals panel in Chicago has agreed that a group of Illinois state and Chicago city workers, among others, have shown Covid vaccine mandate policies imposed by Gov. JB Pritzker and Mayor Lori Lightfoot too easily brushed aside scientific evidence that naturally-developed immunity to Covid-19 can be as effective as a Covid vaccine.
But the appellate judges said that is still not enough to compel courts to block the Covid vaccine mandates.
In the ruling from the three-judge panel of the U.S. Seventh Circuit Court of Appeals, judges again ruled the government employees don’t have a fundamental right to refuse a vaccine as a condition of employment. So, they said, under that standard, the plaintiffs did not do enough to back their contentions that the vaccine mandates for state and government workers violated their constitutional rights or could not hold up under legal standards for review.
U.S. Seventh Circuit Court of Appeals Judge Michael Brennan
The decision was delivered by Seventh Circuit Judge Michael B. Brennan. Circuit judges Michael Y. Scudder Jr. and Amy J. St. Eve concurred. All three judges were appointed to the court by former President Donald Trump.
In their ruling, the judges noted the plaintiffs established that government officials and agencies can't simply ignore mounting scientific evidence that natural Covid immunity is at least as beneficial and durable as the protection against Covid afforded by the approved Covid vaccines.
However, the judges said the cases at this point could not thwart the mandates, in part, because the plaintiffs did not present enough evidence that a person with natural immunity could not gain even greater protection after receiving a Covid vaccine dose.
“The evidence that vaccines reduce the rate of transmission provides a reasonably conceivable set of facts to support the mandates,” the appellate judges wrote. “The same is true for the protections afforded by natural immunity.
“The challenged mandates are susceptible to scientific critique, but the plaintiffs did not provide any evidence - studies, expert reports, or otherwise - showing that the benefits of vaccination on top of natural immunity eliminate a ‘conceivable basis’ for the mandates under rational basis review.”
Under the so-called “rational basis” standard of review, which courts apply to challenges of government policies which do not infringe fundamental rights, plaintiffs must overcome “every conceivable basis which might support” the challenged policies.
“Even if the vaccination policies do not fully account for natural immunity or studies with contrary results, under rational basis review a government need only show that its rationale is supported by a ‘reasonably conceivable state of facts,’” Judge Brennan wrote for the panel. “The governments here have met that low bar.”
'Forceful arguments' needed vs mandates
The ruling comes as the latest step in a protracted court fight over the limits of the authority of Pritzker, Lightfoot and other public health authorities to force certain public workers to get a Covid vaccine, or potentially lose their jobs.
The decision applied to a set of lawsuits brought against Pritzker and the state of Illinois; Lightfoot and the city of Chicago; the Cook County Health and Hospitals System; and the city of Naperville, among others. The cases were brought by firefighters and other public workers, who all alleged the mandates, imposed in 2021, amounted to violations of the government workers’ constitutional rights to due process, bodily autonomy and freedom of religion, among others. They also alleged the mandates violated their conscience rights under the Illinois Health Care Right of Conscience Act.
In all of the cases, different federal district judges all refused to grant the plaintiffs’ requests for injunctions blocking the various government officials and agencies from enforcing the Covid vaccine mandates.
When those decisions were appealed, the Seventh Circuit opted to consolidate the cases to handle the similar arguments at once, particularly since many of the plaintiffs in the different cases were represented by the same lawyer, Jonathan Lubin, of Skokie.
In the appellate decision, Brennan and his colleagues said the plaintiffs could have developed “forceful legal arguments” against the mandate. But they said the arguments, as presented in district court and on appeal, still fell short.
To begin, the judges noted Pritzker revised the vaccine mandate earlier this year, officially rescinding his executive order requiring firefighters and emergency medical services (EMS) personnel from the mandate. The judges said this decision effectively ended the claims brought by Chicago and Naperville firefighters against Pritzker, because those claims were now moot.
However, the judges ruled the various plaintiffs still had valid claims against the various government executives and other public agencies behind the mandates. The appellate panel specifically refused to dismiss the cases on the basis of standing.
But the appellate judges said the plaintiffs’ request for injunctions blocking the mandates depended on whether the mandates violated workers’ fundamental rights to due process, privacy, bodily autonomy or religious freedom, or even if the workers’ had a protected property right to their jobs.
A 'low bar'
The judges noted the government officials did not have absolute authority to impose the mandates under the so-called police powers granted to the state and local governments to protect public health.
Pritzker and others argued for such an outcome, pointing to the oft-cited U.S. Supreme Court’s 1905 decision known as Jacobson v Massachusetts. In that decision, the Supreme Court ruled the state had the authority under the Constitution to impose a smallpox vaccine mandate on the population.
But the Seventh Circuit judges said Covid was not the same as smallpox, as Covid has a dramatically lower fatality rate compared to smallpox. Further, the judges agreed the Covid vaccines are nowhere near as effective as vaccines against smallpox, which prevented infection and the spread of the virus. In the case of Covid, the vaccines neither prevent infection nor do they prevent people from transmitting the virus to others. In recent months, Pritzker and others who have championed Covid vaccine mandates, and promoted the vaccines as a means to slow the spread of the virus, have been infected by Covid.
Nonetheless, the judges said, the plaintiffs have not shown the Covid vaccine mandates imposed as a condition of employment on public workers infringed any fundamental rights. Therefore, Pritzker, Lightfoot and the other defendants need only exceed a legal “low bar" and demonstrate some “rational basis” for the continued mandates.
The judges noted the various policies specifically allowed for medical and religious exemptions, even if the government agencies in some instances indicated they reserved the right to assess whether the workers requesting a religious exemption were sincere in their beliefs.
On the question of bodily autonomy and privacy rights, the judges said forcing people to get vaccines does involve those rights. But, when imposed as a condition of employment, the mandates don't trespass on any "fundamental rights."
Further, the judges said the plaintiffs’ procedural due process claims also fail because the workers thus far have “not articulated what procedural protections they should have been afforded.”
With these various elements in mind, the judges said, the plaintiffs continue to fall short of persuading judges that “their claims are likely to succeed on the merits.”
The appellate judges upheld the lower court decisions denying the requested injunctions blocking the mandates while the lawsuits continue.
The cases and claims that were not dismissed as moot remain pending in Chicago federal court.